Legal Comment and So Forth

Facebook, the Whistleblower, the Binman and his Surprise Witness

Some months ago I wrote a column for The Journal about the right to anonymity, online and off. By way of an example, I mentioned the then very recent case of Mr. Jim Ferry, a Donegal businessman who had obtained an order requiring Facebook to reveal the identity of an anonymous user who had, Mr. Ferry said, defamed him.

Mr. Ferry runs a waste disposal company, and the Facebook user complained of had set up an account in Mr. Ferry’s name, claiming to have engaged in illegal dumping. Mr. Ferry complained and the page was taken down, but Facebook were unwilling to hand over details of the user without a court order. Mr. Ferry had to go to the High Court to obtain the order. Facebook did not oppose the application, and the anonymous user was not on notice of it, so the order was made without dispute. At the time I wrote

“Mr Ferry is being prosecuted by Donegal County Council for illegal dumping. He may be innocent of all charges, and the law presumes him to be so, until proven guilty. But if he is convicted, then Facebook will have handed over the personal details of someone who has done nothing illegal, and said nothing untrue. Unlike other jurisdictions such as the United States, Irish law fails to ensure that users are notified of attempts to identify them and given an opportunity to oppose the application.

Consequently in most cases Irish users are dependent on the web platform or ISP or to make a case on their behalf. These companies however, have no commercial incentive to do so. Facebook don’t want to get involved in an argument about dumping. That’s why they didn’t oppose the application.”

Last month, Mr. Ferry’s prosecution for illegal dumping came up for hearing. I’ll get to the verdict and its implications for free speech and privacy shortly, but first some entertainment.

A summary trial, the case nonetheless took three days in Letterkenny District Court. Both prosecution and defence briefed Senior Counsel. Mr. Ferry, to the last, maintained his innocence. This became a more difficult task when video evidence was led. The Donegal News describes the video thus:

Judge Kelly was shown covert video recordings showing two of Ferry’s distinctive green and yellow bin lorries dumping waste in holes in the field before it was buried using a track digger at around 5 am on the morning in question.

One of the men was wearing a hi-viz jacket with the name ‘Ferry Refuse’ emblazoned across the back of it.

One might have thought this would be the end of the matter. But at the closing of the first day of the trial, there was a dramatic development:

The hearing ended early after Mr Gillane (for the defence) told Judge Kelly that “a development took place that I have not experienced before.”

He added that his solicitor had received a “communication” and asked that the matter be adjourned for the day.

One can only imagine that what followed was what is commonly described as “uproar in the Court”. The cliffhanger was resolved the following morning. A former employee of Mr. Ferry had walked into court and delivered a letter to Mr. Ferry’s solicitor, admitting that it had been he who was responsible for the dumping all along. This surprise witness, one Marty McDermott, is pictured below, presenting a delighted Mr. Ferry with a “Certificate of Appreciation” awarded “From His Loyal Staff”

The former employee, Marty McDermott told the court yesterday that he had been paid €5,000 to dump illegal waste on the land.

McDermott said he had been set up by a man. “The man that I can’t mention set me up.”

McDermott said the person who wanted him to carry out the dumping was a man who wanted leverage in the Gweedore and Gweebara Bridge area, to keep Jim Ferry out of his area. “He wanted to get him out of that hub,” he said.

McDermott said he couldn’t deal with the guilt of what he had done after hearing people speaking about the implications the upcoming court case would have on the yard.

…

He said he went and spoke to a priest who advised him to see a solicitor who in turn advised him not to go near the court. He later decided to communicate with Ferry’s defence team.

Alas for Mr. Ferry, the Court found Mr. McDermott’s evidence entirely unbelievable. Still, Mr. McDermott has at least got the matter off his chest, and as soon as he donates the €5,000 to a worthy cause, his conscience will be clean. Mr. Ferry was sentenced to six months, suspended and fined €12,000. He was also ordered to pay Donegal County Council €30,750 in costs. The cost of his own legal team (who, given the circumstances, were made to work hard for their money) will be similar. This is without factoring in the cost of his trip to the High Court against Facebook.

Which brings us back to the point I was trying to make before I was side-tracked by Letterkenny’s Trial of the Century. Mr. Ferry knew all along that he was guilty of illegal dumping. His efforts to require Facebook first to remove the (true) allegations against him, and then to unmask their author were entirely without merit. A whistleblower was silenced because a man with a lot of money to splash around on unnecessary legal costs wanted to suppress the truth. He was able to do so because Irish law contains no mechanism for informing internet users that their identity is about to be revealed, or requiring courts to take the right to anonymity into account when hearing this kind of application. Mr. Ferry got his comeuppance, and highly entertaining it was too. Until the law is modified, not every wrongdoer will be so unfortunate.